IN THE HIGH COURT OF LESOTHO
(Exercising Constitutional Jurisdiction)
(HELD AT MASERU)
In the matter between
INDEPENDENT ELECTORAL COMMISSION URGENT APPLICANT
THE GOVERNMENT OF LESOTHO 64TH RESPONDENT
MINISTER OF FINANCE 65TH RESPONDENT
PRINCIPAL SECRETARY – MINISTRY
OF LAW & CONSITUTIONAL AFFAIRS 66TH RESPONDENT
In Re: matter between;
TRANSFORMATIN RESOURCE CENTRE 1ST APPLICANT
MAIEANE KHAKETLA 2ND APPLICANT
AFRICAN ARK (AA) AREKA EA BASOTHO 3RD APPLICANT
COUNCIL OF STATE & 62 OTHERS RESPONDENTS
Coram : M. Mahase ACJ, L. Molete J, and K. Moahloli J
Date of hearing : 19th, 20th September, 2019
Date of judgment: 16th October, 2019
1. Mofomobe and Another v Minister of Finance; Phoofolo K.C. and Another v the Prime Minister and Others C of A (CIV) No 17 of 2017
2. Ntšihlele and Others v Independent Electoral Commission and Others Const Case No. 01/2019 (August 2019)
3. Lesotho Human Rights Alert Group v Minister of Justice and Human Rights LAC (1990-94) 652 at 657F-H
4. The President of the Court of Appeal v The Prime Minister C of A (CIV) No. 62/2013  LSCA1 (04 April 2014)
1. National Assembly Electoral Act, 2011
2. Constitution of Lesotho, 1993
 This is an application for review of the process of appointment of the Independent Electoral Commission by three applicants namely Transformation Resource Centre, Maieane Khaketla and African Ark (AA) Areka Ea Basotho.
 The three applicants brought an ex parte application for an order interdicting the Council of State from proceeding with the appointment of Commissioners of the IEC on various grounds. They obtained an interim order to interdict the process before Monapathi J. It is referred to as the main application.
 To this application, four applicants, namely Justice M.L. Lehohla, Dr M. Nyaphisi and Adv M. Pholo who were the Chairman and Commissioners of I.E.C. together with their appointee for Director of Elections Mr L. Bulane seek to be joined as parties to this litigation; and for it to be consolidated with CIV/APN/125/2019. A matter they had already instituted in the High Court exercising ordinary civil jurisdiction and pending before a panel of three judges.
 At the same time the four applicants for intervention also lodged what is referred to as an urgent counter-application for relief that a rule nisi be issued calling upon some of the respondents to show cause why declaratory orders should not be made to the effect that;
(a) The I.E.C. continues to exist at all times including any time after the expiry of their period of appointment until the next commissioners are appointed procedurally.
(b) That they must remain commissioners with full benefits retaining their powers and duties until the new appointments are made.
(c) That they have a right of access to their offices and duties as set out in the National Assembly Electoral Act, 2011, read with Section 66 of the Constitution.
(d) That they be paid forthwith all their arrear salary and other benefits until the new appointments are made.
(e) That Mr L. Bulane was validly appointed as Acting Director of Elections and that he be recognised as such.
 All the respondents opposed the matter and filed notices to raise points of law in terms of Rule 8(10) c. The points of Law raised are that the four individuals (a) lack locus standi to represent the I.E.C, (b) that they have other available remedies, (c) Lis pendens and (d) that this constitutes an actio popularis by IEC for the commissioners. Some respondents also filed answering affidavits on the merits of the application.
 Counsel agreed that the court should make a determination of this urgent counter–application before the main matter and the intervention/consolidation matter. However, the relief sought herein will inevitably have a bearing on the related matters.
 The founding affidavit of Justice Lehohla sets out the cause of action in this application and it can be summarised as follows;
(a) Lesotho is in the midst of a constitutional crisis because the Government and the Council of State have failed to perform their duties as provided for under Section 66 of the Constitution to appoint members of the Independent Electoral Commission.
(b) Their legitimate expectation as Chairman and Commissioners of the IEC whose term expired in January 2019 was that they would be re-appointed because they are suitable to hold office, or remain in office until their appointments are validly terminated.
(c) They received a letter from the Government Secretary advising them that the Council of State has resolved to terminate their appointment. Such termination was unlawful and ultra vires because only the King can appoint and remove a member of the IEC.
(d) Following receipt of the letter from the Government Secretary they were denied access to their offices at the IEC. This undermined the activities of the IEC and led to a complete stoppage of the functions of the IEC. A constitutional crisis was created by a situation where there is no functional Independent Electoral Commission.
(e) In terms of Section 66(1) of the Constitution; ‘There shall continue to be an Independent Electoral Commission…..” and this means that there may never be a situation where there are no members of the IEC. By reason of the fact that the IEC consists of the Chairman and two Commissioners there can be no IEC without these three people.
 In argument Counsel for the applicants submitted that there can be no institution of IEC without the physical presence of these three people being the Chairman and the two Commissioners. I deem it important to make a distinction between the IEC as an institution established by law, in this case the constitution and its functionaries who are appointed from time to time. The constitution creates an institution of the IEC and the words “there shall continue to be an Independent Electoral Commission….”, simply serve to clothe it with perpetual existence as an institution and nothing more. On the other hand, the functionaries or people who constitute Chairman and Commissioners are appointed for a specified period and at the end of that term their appointment expires without further ado. Nobody has to tell them or terminate anything. It is by operation of the law that they have a fixed term.
 It is common cause that applicants were duly appointed as chairman and commissioners by His Majesty in terms of the Constitution, and that their term ended in January 2019. They were appointed for a period of 5 years from 8 January 2014 to 7 January 2019.
 They wrote a letter to the Government Secretary indicating their availability and willingness to serve a further 5 year term as Commissioners of I.E.C. They received a response that there is no right to be re-appointed for a second term and that the Government has decided not to accept their request for re-appointment for a further 5 year period.
 It is also common cause that at the end of their term in January, no new appointments had been made in terms of the Constitution and that a letter was addressed to them in May 2019 from the Government Secretary which purports to terminate their contracts. It is this letter that they consider this to be unconstitutional because powers of the Government Secretary do not include appointment or termination of appointment of the IEC.
 The core of the applicant’s case is that the Government Secretary does not have the power to remove them or to terminate their contracts because in terms of the Constitution, only the King can perform this task. His Majesty and particularly the Council of State, did not act in terms of the Constitution to appoint new Commissioners; therefore they are entitled to remain in office beyond their term until the appointment of a new IEC. This is the logical extension of their argument that the IEC does not exist without its functionaries.
 There can be no doubt that the Government Secretary does not have the power to appoint or terminate the appointment of the IEC and that only His Majesty, on the advice of the State Council may do so. However, it is important to note that in terms of the Section 66(7); “A member of the Electoral Commission shall hold office for such term, not being more than 5 years, as is specified in the instrument of appointment, and may be re-appointed for only one further term not exceeding five years.”
 In the present case the five year period expired in January 2019. That means when the King appointed the applicants he had pre-determined their termination as well, therefore what was expected and should have been done by the applicants was to vacate office at the end of their term, more so when they had been informed that their offer to continue had not been accepted. The effect would be that from that day there would be no IEC Chairman and Commissioners, but that would not be their fault and certainly not their business to launch this counter-application as the IEC.
 It could be said that because of their failure to vacate, the scenario we have is that the Government Secretary perhaps assuming he has the powers to exercise, did so and terminated a relationship or appointment that was no longer existing in law as stipulated in the constitution, because a five year period had lapsed. The Government Secretary assumption of powers he did not have, and his exercise of the same to terminate the contracts, had no effect at all because the relationship had already ended by operation of the law.
 The applicants further maintain that because the institution does not exist without people, and because the Council of State was remiss or inept in not appointing substitute Commissioners, therefore as the previous Commissioners they should remain in office. Surely that will mean they themselves would not have been appointed in terms of the Constitution because there is no provision that would enable them to carry on beyond their term. In effect applicants seek re-appointment of themselves without the Constitutional exercise of Section 66(7) powers by the Council of State and the King. Furthermore powers of the IEC to litigate in terms of Section 140 of the National Assembly Act 2011 relates to the IEC as an institution represented by validly appointed Commissioners.
 It is also important to note that the process of appointment had begun in May 2019. In the main application, one of the applicants complains that he was not shortlisted for appointment and that the process should be reviewed. It means from May 2019 to the present, the only obstacle to the continuation of the process is the order given by Mr Justice Monapathi. Therefore, while reasons for failure to appoint substitute commissioners may have initially been the remissness or ineptitude of the Council of State to advise His Majesty timeously; it has since May 2019 been interdicted by a court order.
 In making their case for consolidation the applicants correctly pointed out the undesirability and danger of having two different courts dealing with the same issue with the likelihood of conflicting judgments. On careful consideration of what they have done in this case in bringing their urgent-counter-application purporting to represent the IEC one finds that they now require this Constitutional Court to give a conflicting judgment to that of Her Ladyship Banyane A.J. This urgent-counter application will have the unwanted result of this Court to give a different ruling from Banyane A.J. She had already decided that this matter is not urgent. Before her, they sought substantially similar relief and the basis of their application is the same as what we have before us. That inevitably means if we are to consider this matter as urgent, we will be in conflict with the judgment of Banyane A.J.
 In addition Banyane A.J. also ordered the Government to pay them their salaries and benefits for the work they did from January when their term ended until May when they were locked out. The matter remains before Banyane A.J. to be finalised on the merits, and Justices Mokhesi and Moahloli have now been appointed for the matter to be heard by a panel of three (3) judges. This relates to the point taken of lis pendens.
 Applicants have other common law remedies and the relief they seek is available elsewhere and therefore this Court may decline to exercise its constitutional jurisdiction in terms of Section 22(2) of the Constitution – Mofomobe and Another v Minister of Finance; Phoofolo K.C. and Another v the Prime Minister and Others; Ntšihlele and Others v Independent Electoral Commission and Others .
 In terms of Section 66(9) r/w (8) of the Constitution there is provision for appointment of acting Commissioners, which means the Constitutional crisis which they allege of having no functional I.E.C. is not necessarily to be avoided by extending their tenure, if such would be avoided by appointment of Commissioners in an acting capacity. Otherwise the application, in so far as it seeks to resolve a constitutional crisis should not be the concern of the I.E.C only. Indeed it would appear that in bringing this application, they may be engaging in “actio popularis” which in Lesotho Human Rights Alert Group v Minister of Justice and Human Rights it was held that the “actio popularis” is not part of our law and that;
“….the right of a private person, or association of persons, is limited to prosecuting actions in his or its own interest and he or it has no title to institute them in the name of the public.”
 From the foregoing it will be clear that for reasons stated above the application cannot succeed. It is defective for many reasons but suffice it to say that:
(a) Applicants can get relief in the High Court exercising its ordinary civil jurisdiction, and they are already aware of that because they instituted proceedings that are pending before a panel of 3 judges. There is abundant authority to the effect that the Constitutional Court should not be approached where ordinary courts have jurisdiction.
(b) Applicants ceased to be the chairman and commissioners of the IEC in January 2019; and if there is any constitutional crisis, it will not be resolved by this court extending the term of the three individuals, because it came to an end. The delay in appointing substitute Commissioners is not their problem and does not authorise them to litigate as the Independent Electoral Commission in this case. A fixed term contract or appointment comes to an end upon expiry of that period. The fact that applicants stayed in office beyond their stipulated 5 year period does not make it legal; and particularly being aware that their offer to continue as commissioners had been rejected. Any expectation they may have had to continue should have been dispelled by that rejection.
 The respondents sought an order that the applicants pay the costs personally. The principles governing constitutional litigation are clear that unless the litigation is frivolous and vexatious costs will not be awarded (The President of the Court of Appeal v The Prime Minister). It is not good that two applicants are in this case a Judge and an advocate, who one supposes should have appreciated the facts and the law applicable. However, we can safely assume that they followed the advice of their counsel and attorney and therefore that absolves them from that liability.
The result therefore is that
(a) The application is dismissed.
(b) There will be no order as to costs.
ACTING CHIEF JUSTICE
For Applicants : Mr P.J. Zietsman instructed by Mofolo, Tau-Thabane & Co.
For Respondents: Mr Maqaqachane, Mr Moshoeshoe and Mr Letsika
C of A (CIV) No 17 of 2017.
Const Case No. 01/2019 (August 2019)
LAC (1990-94) 652 at 657F-H
C of A (CIV) No. 62/2013  LSCA1 (04 April 2014)
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